Shutting the Door on Habeas at Guantanamo

Andy Worthington was on RT TV yesterday (June 11) talking about the recent Supreme Court decision not to review seven lower court rulings denying habeas release to Guantanamo prisoners. (The Court also declined review of a lawsuit by US prisoner, and Jose Padilla, who was tortured in a US Navy brig as an "enemy combatant" and later sentenced to prison for "material support" to terrorism.)

Back in June 2008, then-Presidential candidate told election crowds, "That's why we're going to close down Guantanamo and restore habeas corpus." But as Lyle Denniston, at SCOTUSblog noted in an article yesterday -- "Court bypasses all new detainee cases (FINAL UPDATE)" -- that's not what actually happened.

The [2008] Boumediene case was the last major terrorism case that went against the government. There, while establishing a constitutional right for Guantanamo prisoners to file habeas challenges to their detention, the Crt left it to lower courts to sort out just how that judicial process would work, case by case. More than a dozen District Court judges in Washington then took on the initial review task and, for a time, found in a majority of cases that the government had not justified further detention of the individual involved. But, when the government appealed release orders, the D.C. Circuit ruled against the detainee, or else ordered the District judge to reconsider.

In a string of decisions, not one of which the Supreme Court has been willing to review, the D.C. Circuit fashioned its own legal rules for Guantanamo cases, including at least two review methods that strongly favored the government’s evidence. Along the way, three judges on the D.C. Circuit — Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Circuit Judge Janice Rogers Brown — have publicly and sharply criticized the Boumediene decision. The Supreme Court, turning its judicial cheek, has never responded to any of those criticisms, other than to leave the D.C. Circuit with virtually sole control of continuing litigation by Guantanamo prisoners and their volunteer lawyers.

Denniston made the point, as well, that Obama appointee Elena Kagan was probably involved in the decision not to review. Even more to the point, though, the Obama administration argued against SCOTUS review of the detainees' appeals.

The implicit instigators of this decision are the liberals who have sold out any semblance of belief in civil rights and civil liberties, unless such pertains to their own favorite group. Instead, for the sake of electoral "lesser-evil" politics, human beings held in solitary confinement, in indefinite detention, many if not most innocent of any crimes, and subjected to brutal medical treatments like forced feedings, or violent cell extractions, and God knows what else, are reduced to merely chips in the poker game of US election politics. This attitude goes hand-in-hand with the bizarre cheerleading for Obama's drone killings, and his policies of military intervention from Afghanistan to Libya to Mexico, and (barely) covert warfare against Iran.

As Andy Worthington said at his blog, introducing the RT video, "On the fourth anniversary of Boumediene v. Bush, this is a truly depressing state of affairs, and one made all the more depressing because of the general indifference of the US media and the American people, and I hope my contribution, and RT’s interest in the story, will help people to understand how depressing it is that the men in Guantánamo have been so shamefully failed by all three branches of the US government."



Other important discussions of the recent SCOTUS decision are taking place at Emptywheel and Lawfare. Adam Serwer at Mother Jones also wrote a good story. The best review of all the coverage on this was by Jason Leopold at Truthout, who also talked to some of the Guantanamo attorneys affected by the decision:

Brent Mickum, an attorney who has spent nearly a decade working on the habeas cases of several Guantanamo detainees and currently represents the high-value prisoner, Abu Zubaydah, said, "For those of us who have been working in the trenches for years and years this is a really sad and disappointing day."

"All of our work has essentially been for naught," Mickum said. "This leaves open a glaring question, what is the next step? All of the habeas attorneys will be getting together for a major meeting to discuss that."

In an interview, Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research who has represented several Guantanamo detainees and is also a member of Zubaydah's legal team, said the Supreme Court's landmark decision in Boumediene is now as "legally effective as a law review article."